It’s more than a little ironic that when white nationalists and neo-Nazis have gone to court in the United States to defend their right to hold public demonstrations, at their side providing legal support has invariably been the American Civil Liberties Union. Ironic, not only because the politics of that organization and its supporters is overwhelmingly liberal, and certainly not racist, but also because, through much of its nearly 100-year history, Jews have been disproportionately represented in both the leadership and membership of the ACLU. Ask them why, and the organization’s supporters, Jews and others, will probably tell you, in the famous phrase used by Voltaire biographer Evelyn Beatrice Hall to describe a principle of the French philosopher, that even if “I disapprove of what you say, I will defend to the death your right to say it.”
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The ACLU was in Charlottesville last week pleading on behalf of Jason Kessler, one of the organizers of the Unite the Right event that ended in appalling violence on Saturday, in his appeal to the U.S. District Court to overturn an attempt by the city to revoke the permit for the demonstration in Emancipation Park (formerly Robert E. Lee Park).
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Of course it’s not just the ACLU that is absolutist about the right to free speech in America: U.S. courts up to the Supreme Court have consistently interpreted the First Amendment to the Constitution as guaranteeing all but speech that constitutes a “clear and present danger” to public safety. Even then, the courts have generally interpreted the “fighting words” that qualify as such a danger as having to incite listeners to carry out dangerous or violent actions.
So, although Justice Oliver Wendell Holmes famously ruled in 1919 that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” the basis for that opinion was the fact that a theater audience is “captive,” and cannot simply walk away to avoid hearing the offensive speech. In the case of a white nationalist protest march, no one is forced to listen to the messages being purveyed, and the only speech not protected by law is that which would incite participants — and not counterdemonstrators, for example — to violence.
This is why, in 1978, the Nationalist Socialist Party of America — assisted by the ACLU attorney David Goldberger, a Jew — was supported by both state and federal courts when it appealed the attempts of the town of Skokie, Illinois to prevent it from holding a march through that suburb just north of Chicago. The fact that the Holocaust-denying neo-Nazis of the NSPA had chosen a town some 16 percent of whose residents at the time were Holocaust survivors was not sufficient reason to cancel the march, said the courts. And when local authorities tried to discourage the organizers from going through with the event by demanding they put up a bond of $350,000 to offset potential damage caused by the march, and forbade participants from wearing Nazi uniforms or brandishing swastikas, they were overturned by the courts.
The NSPA’s victory, however, was a pyrrhic one. Although it initially planned to march in 1977, all the legal haggling meant that it wasn’t until June 25, 1978 that the event took place. It was a gathering, not a march, and the 20-odd people who turned up to participate were far outnumbered by the counterdemonstrators.
In the 1960s, another neo-Nazi, George Lincoln Rockwell, made one deranged attempt after another to lead mass marches at venues such as the National Mall in Washington. He, too, was aided by the ACLU.
In 1960, when Rockwell showed up in court in New York to appeal Mayor Robert Wagner’s decision to deny him a permit to demonstrate in his city, a reporter asked Rockwell how he would treat Jews if he ever gained political power. Rockwell responded that he would treat Jews like all other Americans: If they were loyal citizens, they would have no problems; if they were traitors, they would be executed. The quick-witted reporter followed up by asking him what proportion of Jews he estimated to be traitors, to which Rockwell responded, “90 percent.”
It was Jews, Rockwell was convinced, who were behind a plot to integrate the United States, in part through what he believed to be their manipulation of the civil rights leader Martin Luther King Jr.
When Rockwell was assassinated, on August 25, 1967, as he emerged from an Arlington, Virginia laundromat, it was by a former member of his American Nazi Party.
The difference between then, be it 1960 or 1977, and now, of course, is that the United States is led by a man who is unable to unconditionally condemn racism or violence.
In the wake of the death of one bystander and the injury of another 19 people in a Charlottesville street when a young racist from out-of-state drove his car into them, the speaker of the house and even the ultraconservative Sen. Ted Cruz all condemned what Attorney General Jeff Sessions characterized as the “violence and death [arising] from racial bigotry and hatred.” It was only the U.S. president who could not bring himself to acknowledge what was behind the demonstrations in Charlottesville, and insisted, in an unusual but inappropriate show of evenhandedness on his part, that the “egregious display of hatred, bigotry and violence” came from “many sides ... many sides.”
Who then can blame Richard Spencer, Jason Kessler and the thousands who followed them to Charlottesville to march, for feeling unembarrassed about expressing themselves so directly about their dislike of Jews and African Americans. As white supremacist and former Ku Klux Klan member David Duke said before Friday’s rally, “We’re going to fulfill the promises of Donald Trump” to “take our country back.”